Fordham’s debate about Canada’s unlocatable copyright owner regime

Fordham has the best IP conference. It stimulates vigorous debates about IP issues at and after the conference. A case in point is the usefulness of Canada’s orphan works regime.

I was a panelist at Fordham which addressed the challenges associated with orphan works. I provided a summary of Canada’s Unlocatable Copyright Owner process highlighting its usefulness. I later did a blog post on the topic, Orphan works: the Canadian solution.

The debate about Canada’s regime started at Fordham when Howard Knopf (a persistent Fordham questioner) disagreed with my assessment stating the following (according to the Fordham unedited transcript of the panel):

QUESTION [Howard Knopf]: Barry, I think, with all respect, you are looking at the Canadian situation through rose-colored glasses. There is a significant cost. The Board justifies a number of its many, many person-years — it’s the largest copyright board by far in the world — for processing these licenses. Several people work on them. I’m told reliably that the Board members virtually never look at them. The one time they did, a notorious case, they made quite a bungle of it, frankly, with a split decision.

For many years the Board was charging people money to get copies of the plans of their homes that were registered at City Hall so they could renovate their homes, until I pointed out on my blog that there was a Supreme Court decision in Canada called Netupsky that said they don’t have to do that. So finally the Board stopped doing that.

It was a good idea at the time because it was ahead of time. But it is a costly thing in terms of resources. The money simply goes to collectives that don’t do anything to earn it.

A few years ago, the former General Counsel of the Board, who is no longer there, suggested that extended compulsory licensing was a wonderful idea and the Board could easily, in his view, set up a protocol to take care of the Google Books situation, the same way they do with somebody who wants to renovate their basement.

So I don’t think there are any lessons to be learned from Canada, frankly.

The Chairman of the Copyright Board was in the audience and managed to get the moderator to let him make a short comment. Justice Vancise disagreed with Howard saying (according to the transcript) :

Yes, it’s a very brief comment. Howard doesn’t know what he’s talking about. [Laughter] There is one person at the Board dedicated to dealing with this matter. Every license that is issued, Howard, is seen by the Board and an order is issued. So before you make bold wild assertions, you should at least have your facts straight. It is a very cost-effective way in which to deal with it. I agree with Mr. Sookman.

In the spirit of Fordham, Howard sought to continue the debate posting the blog, Canada’s Unlocatable Copyright Owner Regime – A Canadian “Solution” or a Canadian Problem or a Canadian Opportunity? In it he renewed his criticisms noting that the Board has only issued 277 licenses and denied requests in 8 cases and questioning whether it is “a wise use of resources for a Board that is already the largest board of its kind by far anywhere in the world”; whether the Board is fulfilling the mandate given to it by Parliament “in an efficient and effective manner”, and why copyright collectives collect royalties or license fees on behalf of the unlocatable owners. He also suggested that because the Board has a target of 45 days to process applications that “a lot of time may be spent on these files”.

A few facts are worth noting in relation to Howard’s claims.

It might be true that the Board is the largest board of its kind anywhere in the world. But, the Board also a jurisdiction that is much broader that in any other country.

277 licenses have been issued since 1989. But close to 500 applications were made. Many were abandoned because of the professional help the Board staff provide to help find the copyright owner. This is a service that provides value and benefit to the Canadian public.

Some collectives (Access Copyright, Copibec) have entered into an MOU with the Board, by which they agree to help furthering research to find copyright owners and to provide the Board with suggestions in respect of the terms and conditions of the licence to be issued.

The 45-day target Howard refers to is a standard performance measure for the Board, not a measure of the working time needed to complete the license issuance process.

In his blog, Howard went onto suggest that Canada’s regime has been criticized internationally. He referred to the 2006 Report of the US Register of Copyrights. Yet, that report specifically stressed that it was not taking a position on the viability or desirability of the Canadian or other solutions it canvased.

Several alternatives for addressing these issues have been proposed and at least one country, Canada, has adopted legislation that specifically addresses orphan works. For background purposes, the Copyright Office describes some examples in this notice. It is stressed that the Office does not take a position as to the viability or desirability of any specific proposals or systems at this time, but seeks input as to the pros and cons of, and issues raised by, each, as well as proposals for other solutions and analysis thereof.

If a rights holder is located but chooses not to respond, the work would not qualify as an orphan work. Canada has a well-established orphan works scheme and this is the approach it has taken for non-responsive rights holders, which has proven to be effective…

In order to allow us to calculate the costs and benefits we need to be able to estimate the potential levels of use of the scheme. To do this we have taken the Canadian system as a proxy…

The assumptions on the potential level of usage for the domestic scheme are based on the work that the IPO has undertaken in planning for the setting up and running of the Authorising Body, which, in turn, was based on evidence from the Canadian Orphan Works scheme.

The UK is now proposing a regulation for licensing of orphan works that has attributes similar to the Canadian orphan works regime.

Is the Unlocatable Copyright Owner process the holy grail to all of the challenges associated with orphan works? Of course not. The Board cannot issue licenses outside of Canada, which limits its usefulness in the online context. It is also limited to published works. The regime also doesn’t purport to address the challenges associated with balancing the desire in some quarters for greater access to works for mass digitization projects with the economic and moral rights interests of copyright holders. It is not as ambitious, for example, as the European Council Directive on Orphan Works. But, as I contended at Fordham and in my blog post, it is useful.

Howard, does raise a good point. The Board has a very heavy workload and is understaffed. It is at the forefront of addressing some of the most complex copyright issues in the country. In fact, the Tarifff 22 case and each of the cases comprising the copyright pentalogy that went all the way to the Supreme Court arose from contested proceedings before the Board. It is true that the unlocatable copyright regime does, to some extent, add incremental use of Board resources. The Board had recommended to Parliament during the hearings on Bill C-32 in 1996 that licences be issued by collectives societies, instead of the Board, when the uses contemplated by the licences are ones which they administer. This recommendation was not adopted. The result is a use of the Board’s resources to fulfill the mandate given to the Board by the government. The solution to the Board’s heavy workload is not, however, to cut out one very small, but important part of its functions. It is to give the Board the resources it needs to address the complex legal and economic issues it has to grapple with, issues which both rightsholders and users have vital interests in.

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